The Senate’s Guantánamo Bill: A Wolf in Sheep’s Clothing

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

Last week we saw the inklings of a showdown between Congress and the Obama administration, when the administration released its Statement of Administration Policy threatening to veto the defense budget bill proposed by the Senate Armed Services Committee, or SASC. Among its list of objections, the administration said it could not support a bill that would make it impossible for President Obama to keep his promise to close the Guantánamo Bay detention center — a goal leaders of both parties have said, at various times, is critical to US national security.

We posted the bill here last Thursday. If you just read the Gitmo-related provisions quickly, or read only SASC Chairman John McCain’s (R-Ariz.) descriptions of them, it might have seemed like the reasonable “bipartisan compromise” McCain claimed it was. And compared to what some senators have proposed, like this amendment by Sen. James Inhofe (R-Okla.) that would completely ban transferring any Guantánamo detainees to the United States, even for temporary medical treatment, it sounds relatively reasonable. But in fact, a close read of the bill reveals it to be just more of the same old Congressional obstructionism.

The bill appears to allow the president to transfer detainees to the United States for trial or continued detention — a key part of any plan to close the detention facility in Cuba. But that provision only kicks in after the Administration has sent Congress a detailed plan for closing Guantánamo that the full Congress has approved. Given how intent Republican lawmakers have been on preventing that from happening over the past six years, with their control of both houses of Congress, it’s impossible to imagine their approving a new plan now.

Without Congressional approval of this new fantasy plan, the SASC National Defense Authorization Act (NDAA) actually makes things worse: it reinstates old, needlessly onerous restrictions on transferring detainees out of Guantánamo, even to other countries, and in some cases, makes them even more burdensome. Proposed restrictions include a complete ban on transfers to the United States, except temporarily for medical treatment, and a ban on funding construction or modification of any US detention facilities to house Guantánamo detainees in the future. The bill also bans transfers to any country that has accepted Guantánamo detainees in the past if any of those former detainees subsequently engaged in terrorist activity. The Secretary of Defense can get around the ban only by providing a detailed report of what actions will be taken in each case to prevent any future individuals released from engaging in terrorist activity in the future. That’s in addition to the requirement that that the Secretary certify that actions have been or will be taken to “ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future.” While the White House has already been providing those assurances, it’s explained repeatedly that disclosing the specifics of those agreements with foreign governments “would have a chilling effect on those countries’ willingness to cooperate on detainee transfers.” Which, presumably, is why the Senate committee now wants to require that.

Overall, although SASC presents its bill as one that reasonably seeks to cooperate with the administration on its national security objective of closing Guantánamo, it ignores the fact that since President Obama took office and pledged to close the offshore prison, Republicans in Congress have steadfastly refused to let him do it. The bill is a wolf dressed in sheep’s clothing: it’s designed to look like some Republicans are willing to play nice, while knowing that the majority of the party’s elected officials aren’t even willing to join the game.

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About the Author(s)

Director of the Security with Human Rights Program at Amnesty International USA
She advocates for US compliance with international law in US national security policy.
Follow her on Twitter (@deviatar).